Certain Crawler Cranes and Components Thereof; Commission's Final Determination; Issuance of a Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation, 22549-22550 [2015-09280]

Download as PDF asabaliauskas on DSK5VPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices ¨ ¨ Washington, DC, and by Omur Yarsuvat, an attorney in Istanbul, Turkey. The ALJ denied Organik Kimya’s motion to terminate the investigation based upon a consent order stipulation. On October 28, 2014, Organik Kimya filed a petition for review of the sanctions ID. The same day, Finnegan and Yarsuvat filed separate motions before the Commission to intervene in the investigation for the purpose of contesting joint liability for the monetary sanction. Finnegan and Yarsuvat also filed provisional petitions for review of the sanctions ID. On November 10, 2014, Finnegan filed a motion for leave to file a reply in support of its motion to intervene, which Dow opposed. On December 16, 2014, the Commission granted the motions to intervene and determined to review the sanctions ID. The Commission notice granting review solicited further briefing on two questions concerning sanctions and on remedy, the public interest, and bonding. On December 30, 2014, the parties— Dow, Organik Kimya, Finnegan, and Yarsuvat—filed opening briefs in response to the Commission notice. (Organik Kimya filed two briefs.) On January 7, 2015, the parties filed replies. (Dow filed two replies.) Having examined the record of this investigation, including the ALJ’s sanctions ID, as well as the petitions to the Commission and their replies, and the briefs to the Commission and their replies, the Commission has determined to affirm the ID’s finding of Organik Kimya in default. See 19 U.S.C. 1337(h); 19 CFR 210.16-.17, 210.33. The Commission has determined that the appropriate remedy is the issuance of a limited exclusion order prohibiting, for twenty-five years, the entry of opaque polymers manufactured using any of the misappropriated trade secrets identified in Dow’s Disclosure of Misappropriated Trade Secrets (Jan. 29, 2014) (listing trade secrets A–ZZ). The Commission has also determined to issue a cease and desist order prohibiting Organik Kimya U.S., Inc. from, inter alia, importing or selling opaque polymers manufactured using any of the aforementioned misappropriated trade secrets. The Commission has also determined that the public interest factors enumerated in section 337(d) and (f), 19 U.S.C. 1337(d) & (f), do not preclude the issuance of the limited exclusion order or the cease and desist order. The Commission has determined that no bonding is required during the period of Presidential review, 19 U.S.C. 1337(j). The Commission has further determined to affirm the ALJ’s VerDate Sep<11>2014 18:00 Apr 21, 2015 Jkt 235001 assessment and calculation of attorneys’ fees and costs against Organik Kimya. The Commission has determined to affirm, with modification, the ALJ’s determination that Finnegan be held jointly and severally liable with Organik Kimya for those sanctions. The Commission has determined to reverse the sanctions ID to the extent that it imposed joint and several liability on Mr. Yarsuvat. The Commission’s reasoning in support of these determinations is provided in an accompanying Commission opinion. The investigation is terminated. Commissioner Schmidtlein dissents, for the reasons to be set forth in her separate opinion, as to the Commission’s determination on sanctions for Organik Kimya’s counsel. She otherwise joins the Commission’s determination as to Organik Kimya’s default, the Commission remedial orders to be issued, and the liability of Organik Kimya for fees and costs. The Commission’s limited exclusion order and opinion were delivered to the President and the United States Trade Representative on the day of their issuance. The authority for the Commission’s determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission’s Rules of Practice and Procedure (19 CFR part 210). By order of the Commission. Issued: April 17, 2015. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2015–09444 Filed 4–21–15; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation No. 337–TA–887] Certain Crawler Cranes and Components Thereof; Commission’s Final Determination; Issuance of a Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation U.S. International Trade Commission. ACTION: Notice. AGENCY: Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has (1) issued a limited exclusion order prohibiting importation of certain crawler cranes and components thereof SUMMARY: PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 22549 and (2) issued a cease and desist order directed to the domestic respondent. FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2737. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (https://www.usitc.gov). The public record for this investigation may be viewed on the Commission’s electronic docket (EDIS) at https:// edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission’s TDD terminal on (202) 205–1810. SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC of Manitowoc, Wisconsin (‘‘Manitowoc’’). 78 FR 42800–01 (July 17, 2013). The complaint alleges violations of subsection (a)(1)(B) of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (‘‘section 337’’) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain crawler cranes and components thereof, by reason of infringement of U.S. Patent Nos. 7,546,928 (‘‘the ’928 patent’’) and 7,967,158 (‘‘the ’158 patent’’), and that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337. The complaint further alleges violations of subsection (a)(1)(A) of section 337 by reason of trade secret misappropriation, the threat or effect of which is to destroy or substantially injure an industry in the United States or to prevent the establishment of such an industry. The Commission’s notice of investigation named Sany Heavy Industry Co., Ltd. of Changsha, China, and Sany America, Inc. of Peachtree City, Georgia (collectively, ‘‘Sany’’) as respondents. The Office of Unfair Import Investigations (‘‘OUII’’) was also named as a party. On July 11, 2014, the ALJ issued his final initial determination (‘‘ID’’) finding a violation of section 337 with respect to claims 1, 2, 5, 8, and 23–26 of the ’928 patent and misappropriation of E:\FR\FM\22APN1.SGM 22APN1 asabaliauskas on DSK5VPTVN1PROD with NOTICES 22550 Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices Trade Secret Nos. 1, 6, 14, and 15. The ALJ further found no violation of section 337 with respect to claims 6, 10, and 11 of the ’928 patent, claim 1 of the ’158 patent, and Trade Secret Nos. 3 and 4. On July 28, 2014, OUII, Manitowoc, and Sany each filed a petition for review. On August 5, 2014, the parties replied to the respective petitions for review. On September 19, 2014, the Commission determined to review the final ID and solicited briefing from the parties on questions concerning violation, remedy, bonding, and the public interest. 79 Fed. Reg. 57566–68. Specifically, the Commission determined to review the ALJ’s findings with respect to: (1) Importation of the accused products; (2) infringement of the asserted patents; (3) estoppel; (4) the technical prong of the domestic industry requirement; and (5) the asserted trade secrets. The parties provided initial submissions to the Commission’s questions on October 1, 2014, and responsive submissions on October 8, 2014. On December 3, 2014, the Commission determined to request additional briefing. Notice (December 3, 2014). On December 12, 2014, the parties filed initial submissions in response to the Commission’s notice and filed response submissions on December 19, 2014. After considering the final ID, written submissions, and the record in this investigation, the Commission has determined to affirm-in-part and reverse-in-part the final ID and to terminate the investigation with a finding of violation of section 337. Specifically, the Commission: (1) Finds the asserted method claims of the ’928 patent are not infringed; (2) finds the asserted method claim of the ’158 patent is not infringed; (3) finds that claims 23–26 of the ’928 patent are infringed by at least one product; (4) takes no position on the ALJ’s estoppel findings; (5) finds that the domestic industry requirement has been met; and (6) finds Trade Secret Nos. 1, 3, 4, 6, 14, and 15 are protectable and have been misappropriated. The Commission has issued its opinion setting forth the reasons for its determination. Commissioner Kieff concurs in the outcome and has filed an opinion concurring in result and dissenting in part. Having found a violation of section 337 in this investigation, the Commission has determined that the appropriate form of relief is: (1) A limited exclusion order prohibiting the unlicensed entry of certain crawler VerDate Sep<11>2014 18:00 Apr 21, 2015 Jkt 235001 cranes and components thereof that (a) infringe one or more of claims 23–26 of the ’928 patent and are manufactured by, or on behalf of, or are imported by or on behalf of the Respondents or any of their affiliated companies, parents, subsidiaries, agents, or other related business entities, or their successors or assigns; and/or (b) are manufactured abroad by or on behalf of, or imported by or on behalf of, Respondents or any of their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns, using any of Trade Secret Nos. 1, 3, 4, 6, 14, and 15, for a period of ten (10) years; and (2) a cease and desist order prohibiting the domestic respondent from conducting any of the following activities in the United States: Importing, selling, marketing, advertising, distributing, transferring (except for exportation), and soliciting United States, agents or distributors for, certain crawler cranes and components therefore manufactured using any of Trade Secret Nos. 1, 3, 4, 6, 14, and 15. The Commission has also determined that the public interest factors enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not preclude issuance of the limited exclusion order or a cease and desist order. Finally, the Commission has determined that a bond during the period of presidential review (19 U.S.C. 1337(j)) shall be in the amount of 100 percent (100%) of the entered value of the imported articles that are subject to the limited exclusion order or cease and desist order. The Commission’s orders and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance. The authority for the Commission’s determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission’s Rules of Practice and Procedure (19 CFR part 210). By order of the Commission. Issued: April 16, 2015. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2015–09280 Filed 4–21–15; 8:45 am] BILLING CODE 7020–02–P PO 00000 DEPARTMENT OF JUSTICE Antitrust Division Notice Pursuant To The National Cooperative Research And Production Act Of 1993—Network Centric Operations Industry Consortium, Inc. Notice is hereby given that, on March 25, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), Network Centric Operations Industry Consortium, Inc. (‘‘NCOIC’’) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act’s provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Harry Raduege (individual member), Arlington, VA; Tata Power SED, Andheri, Mumbai, INDIA; and Vikram Chauhan (individual member), Great Falls, VA, have been added as parties to this venture. In addition, NJVC, LLC, Vienna, VA, Saab AB, Ostersund, SWEDEN; and The MITRE Corporation, McLean, VA, have withdrawn as parties to this venture. No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCOIC intends to file additional written notifications disclosing all changes in membership. On November 19, 2004, NCOIC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on February 2, 2005 (70 FR 5486). The last notification was filed with the Department on January 27, 2015. A notice was published in the Federal Register pursuant to Section 6(b) of the Act on February 27, 2015 (80 FR 10716). Patricia A. Brink, Director of Civil Enforcement Antitrust Division. [FR Doc. 2015–09322 Filed 4–21–15; 8:45 am] BILLING CODE 4410–11–P Frm 00078 Fmt 4703 Sfmt 9990 E:\FR\FM\22APN1.SGM 22APN1

Agencies

[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Notices]
[Pages 22549-22550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09280]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-887]


Certain Crawler Cranes and Components Thereof; Commission's Final 
Determination; Issuance of a Limited Exclusion Order and Cease and 
Desist Order; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of section 337 in this investigation 
and has (1) issued a limited exclusion order prohibiting importation of 
certain crawler cranes and components thereof and (2) issued a cease 
and desist order directed to the domestic respondent.

FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2737. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server (https://www.usitc.gov). The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission's TDD terminal on (202) 
205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC 
of Manitowoc, Wisconsin (``Manitowoc''). 78 FR 42800-01 (July 17, 
2013). The complaint alleges violations of subsection (a)(1)(B) of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337'') in the importation into the United States, the sale 
for importation, and the sale within the United States after 
importation of certain crawler cranes and components thereof, by reason 
of infringement of U.S. Patent Nos. 7,546,928 (``the '928 patent'') and 
7,967,158 (``the '158 patent''), and that an industry in the United 
States exists or is in the process of being established as required by 
subsection (a)(2) of section 337. The complaint further alleges 
violations of subsection (a)(1)(A) of section 337 by reason of trade 
secret misappropriation, the threat or effect of which is to destroy or 
substantially injure an industry in the United States or to prevent the 
establishment of such an industry. The Commission's notice of 
investigation named Sany Heavy Industry Co., Ltd. of Changsha, China, 
and Sany America, Inc. of Peachtree City, Georgia (collectively, 
``Sany'') as respondents. The Office of Unfair Import Investigations 
(``OUII'') was also named as a party.
    On July 11, 2014, the ALJ issued his final initial determination 
(``ID'') finding a violation of section 337 with respect to claims 1, 
2, 5, 8, and 23-26 of the '928 patent and misappropriation of

[[Page 22550]]

Trade Secret Nos. 1, 6, 14, and 15. The ALJ further found no violation 
of section 337 with respect to claims 6, 10, and 11 of the '928 patent, 
claim 1 of the '158 patent, and Trade Secret Nos. 3 and 4.
    On July 28, 2014, OUII, Manitowoc, and Sany each filed a petition 
for review. On August 5, 2014, the parties replied to the respective 
petitions for review.
    On September 19, 2014, the Commission determined to review the 
final ID and solicited briefing from the parties on questions 
concerning violation, remedy, bonding, and the public interest. 79 Fed. 
Reg. 57566-68. Specifically, the Commission determined to review the 
ALJ's findings with respect to: (1) Importation of the accused 
products; (2) infringement of the asserted patents; (3) estoppel; (4) 
the technical prong of the domestic industry requirement; and (5) the 
asserted trade secrets. The parties provided initial submissions to the 
Commission's questions on October 1, 2014, and responsive submissions 
on October 8, 2014.
    On December 3, 2014, the Commission determined to request 
additional briefing. Notice (December 3, 2014). On December 12, 2014, 
the parties filed initial submissions in response to the Commission's 
notice and filed response submissions on December 19, 2014.
    After considering the final ID, written submissions, and the record 
in this investigation, the Commission has determined to affirm-in-part 
and reverse-in-part the final ID and to terminate the investigation 
with a finding of violation of section 337. Specifically, the 
Commission: (1) Finds the asserted method claims of the '928 patent are 
not infringed; (2) finds the asserted method claim of the '158 patent 
is not infringed; (3) finds that claims 23-26 of the '928 patent are 
infringed by at least one product; (4) takes no position on the ALJ's 
estoppel findings; (5) finds that the domestic industry requirement has 
been met; and (6) finds Trade Secret Nos. 1, 3, 4, 6, 14, and 15 are 
protectable and have been misappropriated. The Commission has issued 
its opinion setting forth the reasons for its determination. 
Commissioner Kieff concurs in the outcome and has filed an opinion 
concurring in result and dissenting in part.
    Having found a violation of section 337 in this investigation, the 
Commission has determined that the appropriate form of relief is: (1) A 
limited exclusion order prohibiting the unlicensed entry of certain 
crawler cranes and components thereof that (a) infringe one or more of 
claims 23-26 of the '928 patent and are manufactured by, or on behalf 
of, or are imported by or on behalf of the Respondents or any of their 
affiliated companies, parents, subsidiaries, agents, or other related 
business entities, or their successors or assigns; and/or (b) are 
manufactured abroad by or on behalf of, or imported by or on behalf of, 
Respondents or any of their affiliated companies, parents, 
subsidiaries, or other related business entities, or their successors 
or assigns, using any of Trade Secret Nos. 1, 3, 4, 6, 14, and 15, for 
a period of ten (10) years; and (2) a cease and desist order 
prohibiting the domestic respondent from conducting any of the 
following activities in the United States: Importing, selling, 
marketing, advertising, distributing, transferring (except for 
exportation), and soliciting United States, agents or distributors for, 
certain crawler cranes and components therefore manufactured using any 
of Trade Secret Nos. 1, 3, 4, 6, 14, and 15.
    The Commission has also determined that the public interest factors 
enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not 
preclude issuance of the limited exclusion order or a cease and desist 
order. Finally, the Commission has determined that a bond during the 
period of presidential review (19 U.S.C. 1337(j)) shall be in the 
amount of 100 percent (100%) of the entered value of the imported 
articles that are subject to the limited exclusion order or cease and 
desist order. The Commission's orders and opinion were delivered to the 
President and to the United States Trade Representative on the day of 
their issuance.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

     Issued: April 16, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-09280 Filed 4-21-15; 8:45 am]
BILLING CODE 7020-02-P
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